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Truths in Translation

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Truths in Translation ARTICLE TRUTHS IN TRANSLATION Frédéric Gilles Sourgens* I. INTRODUCTION ................................................................................ 102 II. A PRIMA FACIE LACK OF FACTUAL RIGOR .......................... 107 A. Burden of Proof ................................................................... 111 1. The Basic Rule in Action ........................................... 111 2. Presumptions Shift the Basic Rule ........................ 115 3. Burdens, Presumptions, and (Post-)Truth ........ 117 B. Standard of Proof ................................................................ 118 C. Burdens and Standards Cannot Operate Without Presumptions ..................................................................... 124 III. INFERENCES AND PRESUMPTIONS ....................................... 124 A. Proof by Direct Evidence ................................................. 124 1. Contemporaneous Documentary Evidence....... 126 2. Witness Testimony ..................................................... 132 3. The Quest for “Corroboration” ............................... 134 B. Inferences .............................................................................. 138 1. Inferences as Gap Fillers ........................................... 139 2. The Threshold Question of Reasonableness ..... 141 3. Plausibility—The Choice Between Reasonable Alternatives ................................................................. 142 C. Presumptions ........................................................................ 146 1. Legal Presumptions as Part of Applicable Law 147 * Senator Robert J. Dole Distinguished Professor of Law & Director, Oil and Gas Law Center, Washburn University School of Law; Editor in Chief, InvestmentClaims.com; former Co-Chair, American Society of International Law Private International Law Interest Group. I would like to thank the participants in the Oxford University Press Investment Claims Summer Academy in Oxford, UK, as well the participants in the First Global Land and Resources Symposium held in Norman, OK for their insightful comments. I would also like to thank Kelsey Halloran and the exceptional student editors and staff working on Volume 44 of the Fordham International Law Journal. Their editorial assistance has been invaluable. 101 102 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 44:1 2. Judicial Presumptions Based on Relevant Practice ......................................................................... 148 IV. PRESUMPTIONS’ BIAS PROBLEM ........................................... 152 A. The Theoretical Foundation of Presumptions ........ 154 B. Presumptions as Narrative ............................................. 157 C. The Bias Problem – How to Test Narratives? .......... 162 V. PRESUMPTIVE POLYVALENCE .................................................. 165 A. Presumptions as Translation ......................................... 165 B. Connotations and Presumptions .................................. 176 C. Deploying Translating Presumptions ......................... 179 VI. CONCLUSION ................................................................................... 185 “‘Thee it behoves to take another road.’” (Virgil to Dante) The Divine Comedy, Inferno, Canto I1 I. INTRODUCTION It has sadly become trite to observe that we live in a post-truth society.2 The hallmark of a post-truth society is its reliance upon alternative facts.3 Such alternative facts are no longer grounded in empirical evidence or governed by the basic laws of logic.4 Instead, 1. DANTE ALIGHIERI, THE DIVINE COMEDY 9 (Henry Wadsworth Longfellow, trans., Barnes & Nobles Inc., 2016). This article is about the value of stepping off a seemingly direct path and finding a different way to one’s goal that is premised in a broader quest for understanding. The conversation between Dante and Virgil is one such stepping off— Dante found his way barred and looked for a guide to take another road. This road is allegorical in the Divine Comedy. But importantly for this article, it is also programmatic for the act of writing the poem: Dante translates Virgil, Latin to Italian, epic hexameter to terza rima, and the adoration of Venus and Caesar to a Christian context. Longfellow in turn translates Dante—Italian into English, European high middle ages to American romanticism and classicism to an opening to modern literatures. Our understanding of truth and identity, and our exercise of judgment changes when we take that different road. And in taking it, more often than not, translation is a key map to keep us from getting lost in the woods. 2. See S.I. Strong, Alternative Facts and the Post-Truth Society: Meeting the Challenge, 165 U. PA. L. REV. ONLINE 137, 137-38 (2017) (discussing the post-truth problem). 3. Id. 4. Compare Trump Holds Firm for Kavanaugh but Calls Accuser Credible, ASSOC. PRESS (Sept. 28, 2018), https://apnews.com/2650e44f2a73484da4c29ca4343dc6f5 [https://perma.cc/22M5-NCZS] (President Trump finding testimony by a woman accusing Brett Kavanaugh of sexual assault “very compelling”), with Peter Baker, Trump Bets 2020] TRUTHS IN TRANSLATION 103 commentators submit that public discourse today is dominated by those who peddle in narrative with callous disregard for the truth.5 Lawyers frequently assert that the rule of law is a potent antidote against such an attitude to the truth.6 The rule of law was thought of as a check against tin-pot dictators and authoritarian rule after the fall of the Soviet Union.7 The link is certainly cemented deeply enough within our collective subconscious through the clockwork repetition of images of young dashing lawyers (frequently played by Tom Cruise) extracting a truth we supposedly cannot handle from mendacious authority figures in the name of law and justice.8 The problem is that—on the world stage at least—this assertion may be a myth. If one were to ask an international judge how she would get to the truth or examine the evidence, she would tell us “I am guided by my intimate conviction.”9 While her intimate conviction might differ from that of, say, President Vladimir Putin of Russia or Senator Lindsey Graham of South Carolina with regard to a specific brewing international incident, she could not in fact Kavanaugh ‘Hoax’ Turns into Midterm Gains, N.Y. TIMES (Oct. 8, 2018), https://www.nytimes.com/2018/10/08/us/politics/trump-kavanaugh-accusations- hoax.html [https://perma.cc/3UNY-STGP] (President Trump asserting the same accusation is “‘a hoax’ and ‘fabricated.’”). 5. See Quinta Jurecic, On Bullshit and the Oath of Office: The “LOL Nothing Matters” Presidency, LAWFARE (Nov. 23, 2016, 11:28 AM), https://www.lawfareblog.com/bullshit- and-oath-office-lol-nothing-matters-presidency [https://perma.cc/B5QU-P8AS]; Roger Cohen, Donald Trump Just Cannot Help It, N.Y. TIMES (Jan. 11, 2019), https://www.nytimes.com/2019/01/11/opinion/donald-trump-illegal-immigration- border-wall.html [https://perma.cc/8YF9-F3XQ]; HARRY G. FRANKFURT, ON BULLSHIT passim (2005). 6. See Thomas Burri, Regulating the Risk of Trumpism, 8 EUR. J. RISK REG. 64, 64-65 (2017) (“New ways need to be found to fortify the rule of law against lies, hatred, and violence which, in a post-truth age, spread unfiltered”); but see David S. Rubenstein, Taking Care of the Rule of Law, 86 GEO. WASH. L. REV. 168, 205 (2018) (“Especially in a ‘post-truth’ era, where perceptions dominate over facts, rule of law arguments that turn on contestable facts and framings will never convince non-believers.”). 7. John K. M. Ohnesorge, Developing Development Theory: Law and Development Orthodoxies and the Northeast Asian Experience, 28 U. PA. J. INT’L ECON. L. 219, 247-48 (2007). 8. A FEW GOOD MEN (Castle Rock Entertainment 1992) (Kaffee: “I WANT THE TRUTH!” Jessup: “YOU CAN’T HANDLE THE TRUTH!”); see also THE FIRM (Davis Entertainment, Mirage Enterprises 1993) (“It’s not sexy, but it’s got teeth! Ten thousand dollars and five years in prison. That’s ten and five for each act. Have you really looked at that?”). 9. See PHILIPPA WEBB, INTERNATIONAL JUDICIAL INTEGRATION AND FRAGMENTATION 189 (2013) (discussing the use of the intimate conviction standard in international law). 104 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 44:1 tell either of them how she approached the evidence differently from both men in advancing their respective political claims.10 All she could have told us is to trust her (and, perhaps, not them). This blind spot is deeply problematic. As this Article submits, the rule of law on the world stage is at risk of being guided by narrative as much as the post-truth populism against which it is invoked. Post-truth populists use narratives to anchor seemingly empirical statements (“largest crowd ever”) in a group’s own mythologies of self-worth (“we are the moral majority”).11 In the legal context, narratives are similarly omni-present. Narratives in the legal context guide factfinding through the central use of presumptions. These presumptions come to be used when there is inconclusive evidence to determine what took place. Centrally, decisionmakers in those instances look at the record through the lens of a presumption that actors conduct themselves in good faith.12 They acted as they ought to have acted. This approach dangerously short circuits the fact-finding process. In more concrete terms, Professors Oona Hathaway and Scott Shapiro have studied an exhaustive historical record of pre-1928 war manifestos.13 They explain that “[b]y making the reasons for war manifest, manifestos sought to make clear that the war in question
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